Domestic Violence and the Child Protective Services in General Despite the strides that society as a whole, and

specifically the legal system, has made within the last few decades in recognizing and responding to domestic violence, disturbing trends still persist. One of the most troubling topics discussed throughout the semester was how women have been and are currently being criminally charged with failure to protect under child abuse, child neglect, or child endangerment statutes primarily because of the violent, criminal actions of their abusive partners. It is undisputed that domestic violence is frequently accompanied by some risk of injury, either physical or psychological, to children in the family.1 The most pressing type of injury seems to be the kind that is physical in nature, specific direct abuse to the child, which may manifest in shaking, pushing, hitting, excessive spanking, burning, and other physically abusive acts. Evidence shows that about half of those who abuse their intimate partners also abuse their children.2 Much like how victims of domestic violence also suffer psychological abuse in addition to physical abuse, the same is true for children. Too often, children experience psychological harms from their exposure to violence. These effects tend to go unnoticed and undetected in the home, school, or other settings where the child is present. These psychological harms can be overlooked because they generally manifest in the forms of behavioral issues. Some children, particularly younger children, may have issues attaching to caregivers, forming bonds with other children, sleeping, eating, or engaging in developmentally age appropriate behaviors. Older children may experience temper tantrums, show inability to focus and/or concentrate, and act in manners that are developmentally inappropriate. Additionally, some children suffer from PTSD as a result of the violence in their homes.3 Sadly,

1 2

Domestic Violence and the Law: Theory and Practice. P. 647. Id. 3 Id.

some children are injured physically not because the batterer is abusive towards them, but at times children feel the overwhelming need to protect their abused mothers and intervene. During some instances, these interventions have culminated in the child being injured.4 Sadly, girls who grow up in homes where there is domestic violence are more likely to be victims of abuse when they grow up. Similarly, boys who grow up in abusive homes are more like to be abusers when they grow up. For these stated reasons, one can understand why laws have been implemented to protect children and to prosecute those who are responsible and fail to do so. Under the laws of many jurisdictions, women with children may be criminally prosecuted for failing to leave their abusive situations, failing to report such abuse, or failing to seek help for the abuse that they and their children have suffered (both directly and indirectly). The criminal justice system, along with childrens advocates, policy makers, and the community at large, has developed an expectation that the right thing for a battered woman with children to do is leave her abuser in order to protect the children. The expectation is not that leaving the abuser is the best choice for a battered mother; instead it is viewed as the necessary choice for her, the only choice. Exploring other options such as staying in the abusive situation while the mother tries to gain employment or increase her funds are frowned upon and criticized. The problem with this societal expectation is that more often than not it is inconceivable for mothers in abusive homes to leave their abusers. These mothers do not stay in these situations because they lack the ability to recognize that the abuse is detrimental to herself and her children. Instead, these mothers often have had to think beyond the here and now and concern themselves with the potential risks that will stem from leaving the abusers. As discussed throughout the semester, in addition to the physical abuse of domestic violence situations, batterers further violate these mothers by employing psychological and
4

Domestic Violence and the Law: Theory and Practice. P. 647.

emotional forms of abuse. Generally, the batterer diminishes the mothers independence by diminishing her financial resources. He ensures this by preventing her from accessing resources or by forcing her to rely on his resources to support and maintain her and the children. Moreover, these mothers have also been isolated from any type of supportive network of friends or other family members. This lack of financial freedom and social isolation, along with the physical, mental, and emotional abuse, deprive the mother and her children of many options when trying to escape the abusive situation. Battered mothers do not fail to recognize the urgency of their situations and they do not fail to consider their childrens best interest when exploring the option of leaving, but they cannot ignore these aforementioned concerns. If mothers do not have financial resources to provide for themselves and their children with the basic necessities such as food, clothing, and shelter, then leaving the abuser may not be a viable option that suits the best interest of the children. In trying to protect her children, this is a genuine consideration for the battered mother. Further, theorist describe that attempting to remove oneself from an abusive situation increases the risk of physical violence. For example, in the process of leaving the abuser, women and their children are at a higher risk for violence, and oftentimes, the level of violence increases dramatically. The countless battered women who are killed or severely injured by their abusers when they attempt to leave and free themselves from the abusive situation illustrate this increased harm. Battered mothers are legitimately concerned with the ongoing safety of their children, which they know can be significantly jeopardized by their attempts to leave the abusers. When weighing her options, the battered mother may determine that leaving the situation could pose a greater threat than it hopes to alleviate. The decision to remain in the home and not remove her children from the reach of domestic violence in the family context has been equated with a

battered womans failure to protect her children. A battered womans failure to protect her children by leaving her abuser may result in criminal prosecution, incarceration, and/or termination of parental rights. Supporters and advocates of prosecuting battered mothers for failure to protect emphasize the harm that children experience in situations of domestic violence. What they fail to acknowledge or recognize is that instead of alleviating an already traumatic experience for the children, their mothers prosecution may further traumatize the children. Prosecution of the battered mother can have substantial harmful effects for the children, especially because in the majority of situations, the mother will be separated from the child for a period of time or permanently depending on the outcome of the prosecution. Despite the length of time, the separation from the mother is traumatic for the child. Children who have been exposed to violence may already show signs of attachment problems and may exhibit behavioral problems that are not age or developmentally appropriate. Removing the only parent that these children have had a close, loving, and supportive relationship with will leave this child alone. Children may develop unwarranted feelings of resentment towards the battered mother if they feel as though she has abandoned them and no longer loves them. Children may not have the cognitive ability to understand why it is that their mother is no longer involved in their lives. Moreover, depending on the age of the children, they may feel as though the system has let them down. Children are not as capable as adults to understand that there may have been what is accepted by society as a failure to protect situation. The only thing that the children will know is that they no longer can see their mom, hug their mom, touch their mom, kiss their mom, read with their mom, or do anything that once was a part of their routine lives. More importantly, and perhaps most traumatic, is the fact that these children are removed

from their homes and are usually placed in the foster care system. The foster care system was designed with the best intentions and to meet the best interests of all children. The reality, however, is that the foster care system is flawed and children in these situations are at great risk for further abuse or exposure to violence. Research shows that children in foster care are significantly more likely to be abused than children in the general population.5 To remove children from a setting where they were exposed to violence or abused to the foster care system where they may face a similar setting or potentially worse seems unreasonable. Further, the fact that these children will likely exhibit behavioral problems makes them a more vulnerable population for child abuse within the foster care system. Lastly, the foster care system imposes unique risks for children who have been exposed to domestic violence. Children who have been exposed to domestic violence may experience high levels of anxiety when their parent-child bond has been disrupted.6 Additionally, this separation increases the traumatic effect on the children because they may worry about their mothers safety and may internalize responsibility for their mother not being present.7 Once children are moved to foster care, the majority of children remain there for more than a year.8 The length of time that the children spend in the foster care system and away from their mothers can only exacerbate the abovementioned harms. For the most part, mothers prosecuted for failure to protect are viewed as mothers that may regain custody of their children after undergoing a comprehensive service plan to the satisfaction of the child welfare system. There are several hearings involved when children are removed from their parents and when parents are working in conjunction with the child welfare system to regain custody of their children.

5 6

Domestic Violence and the Law: Theory and Practice. P. 647. Id. at 652. 7 Id. 8 Id. at 647.

Because of this extended process, children remained in foster care for up to three years in the past. In response to the harmful effects that stemmed from this extended time frame, legislation worked to reduce time period for parents to regain their parental rights. New legislation decreased the length of time between the hearings and mandated that at the 15th month of the process, the courts should make a decision regarding the possible termination of parental rights. As an alternative to the foster care system, some children are placed in kinship care when their mothers have been prosecuted for failure to protect and can no longer care for their children. Kinship care describes situation in which children are removed from the home to be cared for by other relatives. Oftentimes, the suitable other relatives are the childrens grandparents, especially if a grandparent-grandchild relationship exists. The court looks to the grandparents first because of the belief that in their care the children may have a smoother transition to their new living arrangement. At first glance, kinship care may seem like a better alternative to the foster care system, but oftentimes that is not the case. For instance, if the maternal grandparents are deceased or do not have relationships with the children, then the next possible alternative is for the paternal grandparents to serve as the caregivers. Unfortunately, research strongly suggests that there is an inter-generational connection with domestic violence. That being said, if the abuser is the childs father then placing the child in the care of the paternal grandparents may not alleviate the exposure to violence and potential abuse. This kinship could be as detrimental to the children as the childrens family home that was already disrupted by domestic violence and the repercussions of it. Battered Mothers and Failure to Protect It is a deeply engrained in the minds and hearts of most that there is a presumptive duty to protect children. Specifically, this responsibility is a duty that is heavily imposed on parents, but

more so on the mothers. This parental protection encompasses protecting the childrens general wellbeing emotionally, socially, psychologically, and physically. This presumption goes beyond the understanding and expectation of the layperson; it is incorporated in the countrys legal framework. Many state courts have codified some form of a failure to protect statute, which criminalizes passive child abuse, including acts and omissions that have led to the childs abuse. Each state imposes a different range for this time of criminal act that can range from a misdemeanor to a felony. As discussed in class, many jurisdictions hold a person responsible for endangering the welfare of a child when: 1) he/she knowingly acts in a manner likely to result in injuries to the physical, mental or moral welfare of a child less than seventeen years of age or 2) being a parent, guardian or another person legally responsible with the care or custody of a child less than eighteen years of age, he/she fails or refuses to exercise reasonable diligence in the control of such child to prevent him/her from becoming an abused or neglected child. Generally, failure to protect cases stem from situations where a woman has been abused and did not adequately shield her children from the abuse of the father, husband, or boyfriend. These battered women are also victims at the hands of their abusers. Through these failure to protect cases the courts essentially devalue the victim/battered mothers status as a victim and subject her to the harsh realities of a perpetrator. It is important to note that historically there have been statutes that outline strict accountability for domestic violence where children are present or are the victims of the violence. The problem with this strict accountability theory is that it is applied to the actual batterer who abused the children, as well as the victim/battered mother who is the victim of the violence at issue. An example of such an instance is Nicholson v. Williams, 203 F. Supp.2d. 153. In Nicholson, the questionable New York Administration of Childrens Services policy mandated

automatic removal of children from the mother when the mother, a victim of domestic violence, had not victimized her children, but had allowed the domestic violence to occur while the children were present in the home.9 In Nicholson, Ms. Nicholson's former boyfriend had assaulted her. Even though she suffered visible injuries, she postponed seeking medical attention for herself until she made sure that she secured reasonable care for her children. In New York, the Administration for Childrens Services (ACS) was not required to establish proof or any indication that the mother had abused or even neglected her children; instead it was sufficient that the domestic violence had taken place in the home. According to the policy, the simple fact that the domestic violence had occurred between the mother and the abusive partner and had been reported was reason enough to remove the child from the home.10 In Nicholson, it was undisputed that domestic violence had occurred at the home, but it came at the hands of the abuser not at the hands of the mother. The allegation in this suit was that the mother had engaged in the domestic violence, as opposed to the reality that the mother was a victim of domestic violence. Moreover, the court mentioned that the mother had been offered services designed to help her ensure the safety of her children, but that she had denied them.11 Interestingly, ACS had suggested a multitude of resources that the mother should seek, but as an agency failed to make these services available or accessible to her. The court held that the policy of the ACS was unconstitutional and that incidents where children witnessed domestic violence were insufficient for a petition of neglect against the mother and for the removal of the children from the home. Implementation of a strict accountability mechanism for mothers who fail to protect their children as a result of being victims of domestic violence while the children are present creates
9

Domestic Violence and the Law: Theory and Practice. P. 648-651. Id. 11 Id.
10

many problems. First, these situations call into question the actual harm that results from witnessing violence. As aforementioned, this is an area that requires further research and oftentimes children may not manifest the resulted harm until later in their development. Second, mandatory reporting statues for the overall protection of children increase the complexity of such occurrences. Since the 1960s, many states have required certain people who might learn of child abuse or neglect to report it to the appropriate state agency.12 Moreover, the Child Abuse and Treatment Act (CAPTA) requires every state to have a mandatory reporting mechanism as a condition for receiving federal funding for child protection.13 It is of no surprise that all child protection agencies nation-wide have enacting these mandatory reporting mechanisms to ensure that they continued to receive federal funding to sustain their services. In Illinois, doctors or other medical personnel, teachers, law enforcement personnel, social workers, mental health professional, members of the clergy, personnel in domestic violence program, homemakers, and any person called to aid a child must report any suspicions of child abuse or neglect. I cannot dispute that all instances of child abuse and/or neglect should at a minimum be investigated by the states child protection services. My hesitation is related to the aforementioned strict accountability that could be applied towards battered mothers whose children are present in the homes where the domestic violence occurs. For instance, battered mothers may be reluctant to seek services from any of the abovementioned individuals who are mandated to report any suspected child abuse or neglect. A battered mother may not seek medical attention for her injuries that resulted from domestic violence, not because they do not warrant medical attention, but instead because she fears that while receiving treatment the doctor may question her as to the presence of domestic violence in her home. If she admitted to the domestic violence situation in

12 13

Id. at 656. Id.

her home and the doctor had knowledge that she was a parent, then she could be at jeopardy of losing her children. Moreover, strict accountability statutes are problematic because their enforcement can lead to further perpetuating the cycle of violence by discouraging victims to seek resources and services. Finally, strict accountability statutes (specifically in the instances where the children are present in the home where the domestic violence has occurred and child neglect instances) can ultimately lead to removal of the mother from the home and termination of parental rights, which could substantially harm the interests of the children. As demonstrated in In Re Glenn G, child neglect proceedings are instances where there is failure to protect on behalf of the battered women and the court asserted that the standard is of strict liability.14 In Re Glenn G, the children were undoubtedly harmed and this was not a question for the courts consideration. Both parents were charged with sexually abusing their children. Specifically, the father was charged with improperly sexual touching of the children and the mother was charged with allowing the abuse because the acts occurred in her presence and she had failed to protect her children.15 Moreover, in the alternative of sexual abuse charges, the mother was charged with neglect based on her failure to protect the children from the fathers conduct.16 The Court states that the conduct of the passive parent of a sexually abused child may range across a wide spectrum.17 Specifically, the Court asserted that in determining where on the abuse-neglect spectrum the liability of a particular respondent lies, the Court should use two coordinates: the passive parents knowledge or awareness of the actions of the abusive parent, and second, the passive parents actual ability to intervene to protect the child.18 The Court recognized that Battered Womens Syndrome is a condition that seriously impairs the will and
14 15

Domestic Violence and the Law: Theory and Practice. P. 663. Id. at 659-663. 16 Domestic Violence and the Law: Theory and Practice. P. 659-663. 17 Id. 18 Id. at 661.

10

the judgment of the victim.19 Moreover, the Court held that the evidence present sufficiently supported that the mother did not condone the sexual abuse of the children by the respondent father, but instead, due to her affliction with Battered Womens Syndrome, was powerless to stop it.20 Moreover, the Court dismissed the child abuse charges against the mother. Even so, because the neglect statute imposes strict liability, the Court held that the mothers actions were manifestly inadequate to protect the children from the fathers ongoing abuse, of which she was aware, a finding of neglect must be entered against her.21 An initial reaction to reading In Re Glenn G is to feel angry, perhaps even enraged, as well as sad and disappointed. In essence, one may experience a whirlwind of emotions because of the nature of this case and the harm that the children experienced at the hands of their parents. I say parents because both parents were held accountable as being at fault, even though their responsibilities were at differing levels. As a reader, one cannot help but to sympathize with the mother because she demonstrated an extensive history of abuse throughout her relationship with the father. But along with this sympathy, one cannot help but become angry and sad for these children who were sexually abused. Although most of the anger can be directed at the father, it is hard to overcome the initial angry reaction with the mother as well. As the court noted, it is apparent that she did not condone the sexual abuse of her children, but the question that inherently perturbs most is whether the mother did enough once she suspected or knew of the sexual abuse. The problem with such a question is the determination of what constitutes enough. Some will fault the mother for not knowing that the father was inappropriately touching the children and taking inappropriate sexual images of the children, while others will fault the mother for her meager efforts in to protect her and the children. Regardless, the initial
19 20

Id. at 663. Domestic Violence and the Law: Theory and Practice. P. 63. 21 Id.

11

response in this situation is to expect that she be held to some level of accountability. Despite the Courts holding that the mother is found to have neglected the children, and therefore, will be held accountable, many individuals, such a children advocates, will argue that the mothers actions or lack of deserves a higher level of culpability beyond neglect. Domestic violence advocates, battered women, and battered mothers would strongly oppose the Courts finding of neglect that is imposed by the strict liability statutes. This opposition relies heavily on the fact that as a practical matter, both abuse and neglect findings can result in the removal of the children from the home. More often than not, the battered mother is a loving parent with much to offer her children who will be permanently alienated from the childrens lives because the mother was not able to keep the children safe from anothers abuse. This battered mother barely has had the ability to protect herself from the abuser and protecting her children is not absent from her mind, but she lacks the resources and services to do so in the safest manner to avoid further victimization. Intervention, primarily conviction and the subsequent removal of the children from the home, should be a last resort rather than the starting point. In Nicholson v. Scoppetta, the Court clarified the neglect standard for parents failure to protect in situations where a parent or other person legally responsible for the childrens care allows the children to witness domestic abuse against the parent of the caregiver.22 The federal class action was brought on behalf of mothers and children who were separated because the mother had suffered domestic violence to which the children were exposed.23 These mothers were deemed to have neglected for solely this reason.24 As a matter of policy, the ACS, removed children from their battered mothers because as victims of domestic violence, they were

22 23

Domestic Violence and the Law: Theory and Practice. P. 666. Id. 24 Id. at 666-668.

12

engaged in domestic violence.25 As a result, ACS removed and detained the children without probably cause and without due process.26 Mothers in this suit asserted that this policy was an unlawful interference with their liberty interest in the care and custody of their children in violation of the U.S. Constitution.27 Unlike previous precedence, this court held that a party seeking to establish negligence must show, by a preponderance of the evidence, the following: 1) a childs physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and 2) the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship.28 With regards to the first prong, the Court specifies that serious harm or potential harm must be present not merely undesirable parental behavior. Poor parenting will not satisfy this prong of the neglect standard.29 The second prong requires that a parent or caretaker exercise a minimum degree of care. To avoid confusion, the Court further explained that when considering the minimum degree of care an objective standard should be used.30 The Court states that the focus must be on whether or not the mother has met the standard of a reasonable and prudent person in similar circumstance31. Despite the Courts efforts to maintain an objective standard, it makes mention that subjective factors such as if the batterer has threatened to kill her if she tries to leave or risks associated with staying and suffering abuse may be considered.32 This Courts holding highlights that a single allegation that the mother has been a victim of domestic violence to which the children have witnessed is insufficient to meet the standard for
25 26

Id. Domestic Violence and the Law: Theory and Practice. P. 666 668. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. 32 Id.

13

neglect.33 The Court further stated that prior to removing children from the parents home, consideration must be given not only to whether the children have been neglected, but also whether it would be in the childrens best interest to remove them from the home.34 When taking into account the possibility of removing the children from the home, issues that warrant consideration from the child welfare services include what resources are available to the mother and her children if she were to leave the home, as well as what services can be provided to increase her financial position so that she could afford to leave with her children and successfully transition out of the abusive situation. In essence, Nicholson implies that the standard of neglect has evolved from a strict liability standard because the Court opens the door for these standards to be further interpreted. Nicholson invites child welfare workers to look at each familys case independently and focus on the family-specific facts and work closely with the battered mother to improve the familys chances at pursuing a safe and healthy environment away from the abuser. Effects of Failure to Protect Cases on the Battered Mother: Re-Victimization When battered mothers are prosecuted for failing to protect their children, they are revictimized, but this time it happens at the hands of the justice system. In spite of the domestic violence and abuse they are experiencing as spouses or partners in their relationships, battered women maintain their positions that they are capable, loving, nurturing, and supportive mothers. Motherhood may actually be the only aspect of their lives that they can feel as though they have control over. When these mothers are brought before the court to face allegations of abuse or neglect, they are stripped of the one aspect of their lives, which they still hold with high regard. Mothers embrace the responsibility of caring for their children and these proceedings have the
33

34

Domestic Violence and the Law: Theory and Practice. P. 666 668. Id.

14

potential to jeopardize this responsibility. These proceedings are the equivalent to a slap in the face from their abusers. Unintentionally, failure to protect court proceedings are innately designed to be dismissive of the battered mother, a resemblance of her personal relationship with the abuser. The reason that these proceedings are dismissive is because mothers are held to an almost impossible standard of perfection when it comes to their children. Battered women are not exempt from this standard and the fact that they are charged with the failure to protect their children relays the clear message that they have failed at their responsibility of being a great mother. It is almost as though these mothers are viewed as having failed society, as a whole, for not fulfilling their biological and social responsibilities as a mother. Battered mothers actions are misunderstood and because of this misunderstanding they may be considered selfish. As a result, mothers tend to receive harsher punishments as a whole when the case at issue pertains to the failure to protect her children. Moreover, battered women must overcome unique issues in a courtroom proceeding. For example, even though their depiction as battered women should serve as an explanation as to why they could not remove their children or why they could not afford their children greater protection. Instead, their powerlessness and weaknesses are highlighted as evidence to show that they cannot adequately care for their children. Although the court proceeding has an inherent bias against the mother charged with failure to protect, battered mothers can seek some refuge from the law by pursuing certain defenses to the element of mental states. Depending on the jurisdiction, these defenses may include: duress, diminished capacity, and battered womens syndrome. First, generally, battered mothers are under duress if their free will to act is negated or substantially impeded by anothers use or threatened use of force against them and/or their children. Next, battered mothers may

15

employ the defense of diminished capacity by arguing that the trauma they experienced as battered women resulted in their diminished capacity, which affects their ability to comprehend the nature of their actions. Lastly, battered mothers traditionally rely on the Battered Womens Syndrome (BWS), which asserts that a battered woman manifests symptoms of earned helplessness and may not seek help since she feels powerless to escape from the abuse. Not all jurisdictions allow for an affirmative defense based on BWS to explain the mothers mental state; some jurisdictions only allow BSW to be introduced as a defense when the battered woman asserts the position of self-defense (i.e. when a battered woman kills her abuser). Conclusion Laws and policies that promote the prosecution of battered women for failure to protect their children do not achieve their stated goals. These laws and policies have created distrust between victims of domestic violence and the judicial system. Battered women are reluctant to report instances of domestic abuse because they fear that they may be prosecuted for failure to protect. In addition, battered mothers worry that seeking services or acknowledging the domestic violence in their homes can lead them to losing custody of their children. Failure to protect laws were designed to ensure the safety of children, but these laws may backfire when misused. Instead of protecting children, the laws and policies may indirectly enable women to further perpetuate the cycle of abuse, and as a result, children may be further harmed.

16